615 So. 2d 808 | Fla. Dist. Ct. App. | 1993
Johnson was arrested and charged with burglary and possession of burglary tools. After a nonjury trial he was convicted and sentenced for possession of burglary tools and petit theft.
In this appeal Johnson contends that the petit theft conviction should be reversed because it is not a lesser included offense of burglary. The State responds that Johnson’s failure to object to being adjudicated guilty of an offense which is not a lesser included of the greater offense charged, was a waiver of the error.
Waiver of a conviction and sentence on a lesser offense, which is not a permissible lesser included offense, applies only where (1) there was an opportunity and failure to object and the offense is lesser in degree and penalty than the main offense, or (2) defense counsel requested the improper charge or relied on the charge in argument or other affirmative action. Ray v. State, 403 So.2d 956 (Fla.1981). Neither condition was met in this case.
The conviction for petit theft is reversed.
